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Original Date Announced
August 15, 2017ICE issues guidance to OPLA attorneys implementing Executive Order 13768 on interior enforcement. The guidance revises enforcement priorities, directs the Office of Chief Counsel to review all previously administratively closed cases, states that prosecutorial discretion is not to be exercised in favor of leniency (except for members of the military and their family members), and announces a general policy of opposing motions to reopen. [ID #270]
Go to article on prisonlegalnews.orgEffective Date
August 15, 2017Subsequent Trump-Era and Court Action(s)
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August 18, 2021
2021.08.19 Texas v. US preliminary injunction decision
On August 19, 2021, Judge Drew B. Tipton of the U.S. District Court for the Southern District of Texas, Victoria Division, enjoined the Biden administration's Jan. 20, 2021, and Feb. 18, 2021, guidance on enforcement priorities. Texas v. U.S., No. 6:21-cv-00016 (S.D. Texas, Aug. 19, 2021).
**Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**
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September 15, 2021
2021.09.15 Texas v. US 5th Circuit Stay Order
On September 15, 2021, a panel of the Fifth Circuit issued an order granting in part the government's request for a stay of Judge Tipton's order enjoining the Biden administration's Jan. 20 and Feb. 18 enforcement priority memos. The memos can go into effect, except to the extent that the government seeks to rely on them to decline to detain noncitizens who are subject to mandatory detention (individuals "described in 1226(c)(1) against whom detainers have been lodged or aliens who fall under section 1231(a)(1)(A) because they have been ordered removed"). The court stayed the remainder of Judge Tipton's injunction until the merits appeal.
On November 30, 2021, the en banc Fifth Circuit vacated the panel's stay and assigned the merits appeal to a future panel. (Texas v. U.S., Case No. 21-40618 (Nov. 30, 2021)).
**Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**
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March 22, 2022
2022.03.22 Arizona v. Biden, Case No. 3:21-cv-314, Order Granting Preliminary Injunction
On March 22, 2022, the Southern District of Ohio issued a preliminary injunction in Arizona v. Biden partially enjoining the Biden administration's September 30, 2021, Guidelines for the Enforcement of Civil Immigration Law. The decision restrains DHS from taking the following three actions pursuant to the guidance:
"a. Enforcing and implementing Section II of the Permanent Guidance (entitled “Civil Immigration Priorities”) to make, determine, or adjudicate noncitizen custody decisions pending removal proceedings contrary to 8 U.S.C. § 1226(c)(1);
b. Enforcing and implementing Section II of the Permanent Guidance to authorize the release of, whether on bond, supervision, or otherwise, a noncitizen with a final order of removal during the removal period in violation of 8 U.S.C. § 1231(a)(2); and
c. Enforcing and implementing Section II of the Permanent Guidance to delay, continue, or stay the execution of a noncitizen’s final order of removal to the extent that no other provision in 8 U.S.C. § 1231, or any other provision of the U.S. Code, justifies the noncitizen’s continued presence in the United States beyond the period set forth in 8 U.S.C. § 1231(a)."**Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**
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April 12, 2022
2022.04.12 Arizona v. Biden, No. 22-3272, On Motion for Stay (6th Cir., April 12, 2022).
On April 12, 2022, the Sixth Circuit issued a stay of the District Court's nationwide injunction regarding DHS's September 30, 2021 Enforcement Guidelines. On the merits, oral argument took place on June 10, 2022. See https://www.courthousenews.com/biden-administration-defends-immigration-policy-before-sixth-circuit/.
**Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**
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June 10, 2022
2022.06.10 Texas v. US opinion
On June 10, 2022, Judge Tipton of the Northern District of Texas vacated, in their entirety, the Biden administration's September 30, 2021 Guidelines for the Enforcement of Civil Immigration Law. The court held that "the Final Memorandum [was] . . . arbitrary and capricious, contrary to law, and fail[ed] to observe procedure under the Administrative Procedure Act."
The court stayed the vacatur for seven days, later extended for another week, during which the administration requested a stay from the Fifth Circuit. No ruling was forthcoming in that timeframe, however, so on June 24, 2022, the district court's order went into effect.
**Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**
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July 6, 2022
2022.07.06_Arizona v. Biden (6th Cir. 2022)
On July 6, 2022, the Sixth Circuit vacated the Southern District of Ohio's Arizona v. Biden injunction, which had partially enjoined the Biden administration's September 30, 2021, Guidelines for the Enforcement of Civil Immigration Law.
**Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**
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July 6, 2022
2022.07.06 Texas v. United States (5th Cir. 2022)
On July 6, 2022, the Fifth Circuit reviewed the district court's vacatur of the Biden administration's September 30, 2021, Guidelines for the Enforcement of Civil Immigration Law, and denied DHS's motion for a stay of the order pending appeal. The court found "no reversible error of fact or law, nor any abuse of discretion" in the district court's opinion that would justify a stay.
**Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**
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July 21, 2022
Denial of Stay, US v. Texas, SCOTUS 2022
On July 21, 2022, the Supreme Court denied DHS's emergency application to stay the district court's vacatur of the Biden administration's September 30, 2021, Guidelines for the Enforcement of Civil Immigration Law. The Court also granted certiorari.
**Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**
View Document
Biden Administration Action: Revoked/Replaced
January 20, 2021Executive Order on the Revision of Civil Immigration Enforcement Policies and Priorities
This Biden administration policy revokes in its entirety the Trump-era policy identified in this entry.
On January 20, 2021, President Biden issued Executive Order 13993 which revoked the Trump administration’s EO 13768.
View DocumentBiden Administration Action: Revoked/Replaced
January 20, 20212021.01.20 Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities
This Biden administration policy revokes in its entirety the Trump-era policy identified in this entry.
On January 20, 2021, DHS issued a policy memo rescinding and suspending the Trump-era policy memo. This memo was supplemented a month later by ICE's Interim Guidance on Civil Immigration Enforcement and Removal Priorities (Feb. 18, 2021), https://www.ice.gov/doclib/news/releases/2021/021821_civil-immigration-enforcement_interim-guidance.pdf.
View DocumentBiden Administration Action: Revoked/Replaced
May 27, 20212021.05.27 Interim Guidance to OPLA Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Priorities
This Biden administration policy furthers the previously mentioned Biden administration action revoking in its entirety the Trump-era policy identified in this entry.
On May 27, 2021, ICE issued guidance to OPLA attorneys on enforcement priorities. In contrast to the previous Trump-era guidance, this document emphasizes the use of prosecutorial discretion when appropriate.
View DocumentBiden Administration Action: Revoked/Replaced
September 30, 20212021.09.30 Guidelines for the Enforcement of Civil Immigration Law
This Biden administration policy revokes and modifies the Trump-era policy identified in this entry.
On September 30, 2021, DHS Secretary Mayorkas issued a memorandum explaining that ICE should use prosecutorial discretion to focus its enforcement on individuals who pose a threat to national security, public safety, and/or border security, and take an individualized approach in each case. The memo contextualizes this prioritization with analysis of the undocumented population within the U.S., the executive's discretion in this area, and the need to protect against civil rights and civil liberties abuses.
This guidance went into effect on November 29, 2021.
View DocumentBiden Administration Action: Revoked/Replaced
April 3, 20222022.04.03 Guidance to OPLA Attorneys Regarding the Enforcement of Civil Immigration Laws and the Exercise of Prosecutorial Discretion
This Biden administration policy revokes and modifies the Trump-era policy identified in this entry.
On April 3, 2022, ICE PLA Kerry Doyle issued Guidance to OPLA Attorneys Regarding the Enforcement of Civil Immigration Laws and the Exercise of Prosecutorial Discretion, which incorporates the Guidelines for the Enforcement of Civil Immigration Law, rescinds the Interim OPLA Guidance, and updates and expands the exercise of PD by OPLA attorneys.
This memorandum has an effective date of April 25, 2022 to streamline OPLA’s process for designating enforcement priorities, and provides greater discretion to OPLA attorneys to exercise PD in individual cases.
View DocumentCurrent Status
Not in effectJanuary 20, 2021Acted on by Biden Administration
January 20, 2021Acted on by Biden Administration
May 27, 2021Acted on by Biden Administration
September 30, 2021Acted on by Biden Administration
April 3, 2022Acted on by Biden Administration
Original Trump Policy Status
Status: Final/ActualTrump Administration Action: Agency DirectiveSubject Matter: InteriorAgencies Affected: ICEAssociated or Derivative Policies
- January 25, 2017 POTUS issues EO 13768, broadly expanding enforcement priorities and mandating enhancements to interior enforcement
- February 20, 2017 DHS memo implementing EO 13768 on "Enhancing Public Safety in the Interior"
- February 21, 2017 ICE implements EO 13767 and EO 13768; directs enforcement against all removable noncitizens and revises detention policy
- August 15, 2017 ICE issues enforcement guidance to OPLA attorneys implementing EO 13768
- March 18, 2020 COVID-19: ICE focuses removal and detention on public safety risks
Pre Trump-Era Policies
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April 6, 2015
Obama administration ICE guidance directed OPLA to generally seek administrative closure or dismissal of cases that were not priorities, and to review information in incoming cases to determine whether, in a case that falls within an enforcement priority, unique factors and circumstances were present that may warrant the exercise of prosecutorial discretion.
Guidance Regarding Cases Pending Before EOIR Impacted by Secretary Johnson's Memorandum entitled Policies for the Apprehension, Detention and Removal of Undocumented iImigrants
Documents
Trump-Era Policy Documents
- Prior Policy
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Subsequent Action
Original Source:
Texas v. U.S., No. 6:21-cv-00016 (S.D. Texas, Aug. 19, 2021)
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Subsequent Action
Original Source:
Texas v. US 5th Circuit Stay Order
- Subsequent Action
- Subsequent Action
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Subsequent Action
Original Source:
Texas v. US opinion
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Subsequent Action
Original Source:
Arizona v. Biden 6th Cir. opinion
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Subsequent Action
Original Source:
Texas v. United States (5th Cir. 2022)
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Subsequent Action
Original Source:
United States v. Texas (Supreme Court, 2022)
- Commentary
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Other
Original Source:
US v. Texas Supreme Court Stay Application
Commentary
Advocating for Prosecutorial Discretion in Removal Proceedings Under the Doyle Memo
Publication of the National Immigration Project of the National Lawyers Guild (NIPNLG) and Immigrant
Legal Resource Center on new strategies to advocate for prosecutorial discretion in removal proceedings.
Go to articleBiden administration halts limits on ICE arrests following court ruling
CBS News publishes a statement from DHS after the Fifth Circuit's initial failure to respond to the administration's emergency stay request: "[DHS] said it 'strongly' disagreed with Tipton's order, but that it was complying with it. 'During the appeals process, ICE agents and officers will make enforcement decisions on a case-by-case basis in a professional and responsible manner, informed by their experience as law enforcement officials and in a way that best protects against the greatest threats to the homeland.'"
Go to article on cbsnews.com